In a bid to recover money allegedly paid by wilful misrepresentation, Nigeria Ports Authority NPA has renewed its legal battle against a
limited liability company, Niger Global Engineering and Technical
company, alleged to have collected the sum of $12,500,000 unjustly
claimed on account of works willfully misrepresented to it to have been
done. Joined as co defendants,are Calabar Channel management Company, and Cares Nigeria Limited.
limited liability company, Niger Global Engineering and Technical
company, alleged to have collected the sum of $12,500,000 unjustly
claimed on account of works willfully misrepresented to it to have been
done. Joined as co defendants,are Calabar Channel management Company, and Cares Nigeria Limited.
In an amended statement of claim filed before a
Federal high court in Lagos south west Nigeria, by Barrister Tayo
Oyetibo SAN, on behalf of Nigerian Port Authority, it was alleged that
sometime in the year 2010 Nigeria port authority (the plaintiff) in
pursuance of its statutory functions particularly the maintenance of
ports desired to carry out dredging works on the Calabar channel to
increase its depth from 8 meters to 10metres in order to accommodate
larger vessels in the port.
Federal high court in Lagos south west Nigeria, by Barrister Tayo
Oyetibo SAN, on behalf of Nigerian Port Authority, it was alleged that
sometime in the year 2010 Nigeria port authority (the plaintiff) in
pursuance of its statutory functions particularly the maintenance of
ports desired to carry out dredging works on the Calabar channel to
increase its depth from 8 meters to 10metres in order to accommodate
larger vessels in the port.
Consequently NPA entered into joint venture with a
construction company led by Niger Global Engineering and Technical
Company limited to incorporate Calabar channel management limited to
carry out the works on the Calabar Channel.
construction company led by Niger Global Engineering and Technical
Company limited to incorporate Calabar channel management limited to
carry out the works on the Calabar Channel.
Upon the execution of the joint venture agreement NPA and
the consortium,Calabar channel management was incorporated at the
Corporate Affairs Commission, the shareholders of the company were NPA
and the consortium who held 60% and 40% of the shares of the company
respectively.
the consortium,Calabar channel management was incorporated at the
Corporate Affairs Commission, the shareholders of the company were NPA
and the consortium who held 60% and 40% of the shares of the company
respectively.
There was no written contract or other instrument in
existence executed between the NPA and Calabar channel for the dregging
of the Calabar channels, setting out the scope of work to be done,
contract price, duration of contract, payment terms or structure and
other relevant terms.
existence executed between the NPA and Calabar channel for the dregging
of the Calabar channels, setting out the scope of work to be done,
contract price, duration of contract, payment terms or structure and
other relevant terms.
However, sometime in October 2014, Calabar channel
management appointed a technical audit company, Cares Nigerian limited
that carries on business from its office at 3 Ademola street Ikoyi, Lagos state as technical auditor for the works to be carried out by Calabar channel management on the Calabar channel.
management appointed a technical audit company, Cares Nigerian limited
that carries on business from its office at 3 Ademola street Ikoyi, Lagos state as technical auditor for the works to be carried out by Calabar channel management on the Calabar channel.
The purpose of the appointed of cares Nigeria limited by
Calabar channel management company was to verify any works said to have
been done by the company on the Calabar channel ostensibly to enable
Calabar channel management company claim payments from the NPA for works
said to have been done on the Calabar channel.
Calabar channel management company was to verify any works said to have
been done by the company on the Calabar channel ostensibly to enable
Calabar channel management company claim payments from the NPA for works
said to have been done on the Calabar channel.
Subsequently to the entry of the Calabar channel management into
the Calabar port, it began wilfully misrepresented to NPA that it had
carried out certain works and incurred certain expenses in relation to
Clabar channel and consequently sent to NPA several invoices which were
all dated 23rd December , 2014 in that respect.
the Calabar port, it began wilfully misrepresented to NPA that it had
carried out certain works and incurred certain expenses in relation to
Clabar channel and consequently sent to NPA several invoices which were
all dated 23rd December , 2014 in that respect.
Apparently, Cares Nigeria limited acting as Technical
Auditor, prepared and sent to NPA a document titled quarterly progress
report 2014 and dated 9th January 2015.
Auditor, prepared and sent to NPA a document titled quarterly progress
report 2014 and dated 9th January 2015.
When NPA did not immediately settle Calabar channel
company’s invoice, it sent a letter dated 8th, june, 2015 to NPA,
wherein it requested for the settlement of its invoices.
company’s invoice, it sent a letter dated 8th, june, 2015 to NPA,
wherein it requested for the settlement of its invoices.
Upon receipt of the company’s invoices and Cares Nigeria
limited’s 2014 and 2015 reports, NPA wrote a letter dated 19th June,
2015 to Cares Nigeria limited wherein it requested clarification from
the company of some of the technical items stated in the Calabar channel
management’s invoice. The company replied its letter dated 19th of
June 2015 and made the Clarifications.
limited’s 2014 and 2015 reports, NPA wrote a letter dated 19th June,
2015 to Cares Nigeria limited wherein it requested clarification from
the company of some of the technical items stated in the Calabar channel
management’s invoice. The company replied its letter dated 19th of
June 2015 and made the Clarifications.
On the strength of all the invoices made by Calabar channel
management company and representations of Cares Nigeria limited NPA made
payment to Calabar channel management company to the time of
$12,500,000.
management company and representations of Cares Nigeria limited NPA made
payment to Calabar channel management company to the time of
$12,500,000.
NPA was misled by the defendants to pay for works not done.
Subsequent to the payment of the sum of $12,500,000 by NPA to Calabar
channels management company and upon the coming into office of the
current management of NPA, it decided on 29th August, 2015 to review the
entire transaction with a view to seeing if it conformed with extent
laws of Nigeria and consequently gave notice to Calabar channel
management company to cease from any further steps in relation to NPA
functions and powers in respect of the channel. This was to enable NPA
carry out an unimpeded review of the entire transaction.
Subsequent to the payment of the sum of $12,500,000 by NPA to Calabar
channels management company and upon the coming into office of the
current management of NPA, it decided on 29th August, 2015 to review the
entire transaction with a view to seeing if it conformed with extent
laws of Nigeria and consequently gave notice to Calabar channel
management company to cease from any further steps in relation to NPA
functions and powers in respect of the channel. This was to enable NPA
carry out an unimpeded review of the entire transaction.
After receiving the report of its port Manager, it came to the
attention of the NPA management that it had been wilfully misled by
Calabar channel management company and Cares Nigeria limited as to the
fact that Calabar channel carried out any works on the channel , or at
least, the extent of the work said to have been carried out by the
company or expenses. Incurred by it.
attention of the NPA management that it had been wilfully misled by
Calabar channel management company and Cares Nigeria limited as to the
fact that Calabar channel carried out any works on the channel , or at
least, the extent of the work said to have been carried out by the
company or expenses. Incurred by it.
In its 2014 and 2015 audit reports to the NPA, Cares Nigeria
limited stated that the Calabar channel company carried out maintenance
dredgings of the Calabar River and channel between 24th November 2014
and 31stMarch, 2015 with the vessel named waterway deployed.
limited stated that the Calabar channel company carried out maintenance
dredgings of the Calabar River and channel between 24th November 2014
and 31stMarch, 2015 with the vessel named waterway deployed.
In its 2014 and 2015 audit reports Cares Nigeria limited also
stated that it witnessed the works reported to have been carried out by
the company on the Calabar channel and they were professionally done
within the norms of good practice and satisfactory.
stated that it witnessed the works reported to have been carried out by
the company on the Calabar channel and they were professionally done
within the norms of good practice and satisfactory.
Contrary to the above claim Calabar channel management
company did not carry out any maintainance dredging work on the Calabar
channel between the period aforenmationed using the vessel named
Waterway, because in the records of the Calabar port, the said vessel
departed the port on 21st November 2014 without notifying the Calabar
port harbour master.
company did not carry out any maintainance dredging work on the Calabar
channel between the period aforenmationed using the vessel named
Waterway, because in the records of the Calabar port, the said vessel
departed the port on 21st November 2014 without notifying the Calabar
port harbour master.
Prior to November 2014, the Federal Government of Nigeria
had desired to dredge the 84km Calabar Access channel from the ocean.
The contract was awarded to two different contractors in about 2006 with
the aim of deepening the channel from 8.0 metres chart datum to
10.0metres chart datum and also dredge the channel to navigable width of
150metres with the slope of 1 to 3.
had desired to dredge the 84km Calabar Access channel from the ocean.
The contract was awarded to two different contractors in about 2006 with
the aim of deepening the channel from 8.0 metres chart datum to
10.0metres chart datum and also dredge the channel to navigable width of
150metres with the slope of 1 to 3.
The two contractors carried out the dredging between km40
and 44, km456 and 66 and partial dredging of the area between km66 and
70. There was no dredging of any kind at all at km44-66 and km70-km84. The two contractors were demobilized from the site at the end of September 2007.
and 44, km456 and 66 and partial dredging of the area between km66 and
70. There was no dredging of any kind at all at km44-66 and km70-km84. The two contractors were demobilized from the site at the end of September 2007.
Between September 2007 and 2014 there had not been any dredging of the Calabar channel, whether capital or maintenance. Calabar channel management company and Cares Nigeria limited
misrepresented to NPA that Calabar channel management company did
maintenance dredging on the Calabar channel, when there had been no
prior capital dredging on the channel.
misrepresented to NPA that Calabar channel management company did
maintenance dredging on the Calabar channel, when there had been no
prior capital dredging on the channel.
NPA also discovered the fact that the invoices sent to it by
Calabar channel management company in respect of works alleged to have
been done,were verbatim reproduction of invoices sent to Calabar
channels management company by Niger Global Engineering and Technical
limited, in term of the particulars of expenses and their corresponding
figures.
Calabar channel management company in respect of works alleged to have
been done,were verbatim reproduction of invoices sent to Calabar
channels management company by Niger Global Engineering and Technical
limited, in term of the particulars of expenses and their corresponding
figures.
Consequently upon the fact that Calabar channel management
company had been taking invoices sent to it by Niger Global Engineering
and Technical company and nearly rebranding and presenting them to NPA
for the purpose of claiming payment for work allegedly done, NPA came to
the realization that Calabar channel management company had obtained
the sum of $12,500,000 from it on the basis of wilful misrepresentation
by Calabar channel management company and Cares Nigerian limited with
active connivance of Niger Global Engineering and Technical company
limited.
company had been taking invoices sent to it by Niger Global Engineering
and Technical company and nearly rebranding and presenting them to NPA
for the purpose of claiming payment for work allegedly done, NPA came to
the realization that Calabar channel management company had obtained
the sum of $12,500,000 from it on the basis of wilful misrepresentation
by Calabar channel management company and Cares Nigerian limited with
active connivance of Niger Global Engineering and Technical company
limited.
NPA contended that Calabar channel management company was a mere
conduit pipe through which Niger Global Engioneering and Technical
company was taking money from NPA which is an agency of the Federal
Government by reason of which the resources of the Federal Government of
Nigeria was being illegitimately paid to Niger Global Engineering and
Technical company upon wilful misrepresentation that Calabar channel
management company was performing the statutory function of the NPA at
the Calabar channel on behalf of the NPA .
conduit pipe through which Niger Global Engioneering and Technical
company was taking money from NPA which is an agency of the Federal
Government by reason of which the resources of the Federal Government of
Nigeria was being illegitimately paid to Niger Global Engineering and
Technical company upon wilful misrepresentation that Calabar channel
management company was performing the statutory function of the NPA at
the Calabar channel on behalf of the NPA .
NPA averred further that the sum of $12,500,000 Dollars paid to
Calabar channel management company by NPA which it passed to Niger
Global Engineering and Technical company was drawn from public funds
belonging to the Federal Government of Nigeria.
Calabar channel management company by NPA which it passed to Niger
Global Engineering and Technical company was drawn from public funds
belonging to the Federal Government of Nigeria.
Consequently the Calabar channel management company and
Niger Global Engineering and Technical company collection and retention
of the funds paid by NPA in respect of the purported maintaince of the
Calabar channel amongst to unjust enrichment of the defendants to the
detriment of NPA and Nigeria as a whole.
Niger Global Engineering and Technical company collection and retention
of the funds paid by NPA in respect of the purported maintaince of the
Calabar channel amongst to unjust enrichment of the defendants to the
detriment of NPA and Nigeria as a whole.
Whereof NPA claims against the defendants are as follows:
A declaration that Calabar channel company and Niger
Global Engineering and Technical company are not entitled in law to
retain the sum of $12,500,000 Dollars held by them being the sum
unjustly claimed and received from NPA on account of works wilfully
misrepresented to NPA by Calabar channel management company and Cares
Nigeria limited as having been done by Calabar channel management
company.
A declaration that Cares Nigeria limited acted in breach of
its fiduciary duties to NPA in relation to the Calabar channel when it
wilfully misrepresented to NPA in its audit reports that it witnessed
the performance of Calabar channel management company.
its fiduciary duties to NPA in relation to the Calabar channel when it
wilfully misrepresented to NPA in its audit reports that it witnessed
the performance of Calabar channel management company.
An order that Calabar channel management company and Niger
Global Engineering and Technical company do return to NPA forthwith Within fourteen days
from the date of judgement in this suit the sum of $12,500,000 Dollars
being the amount unjustly claimed and received from NPA. Interest on the
said sum at the rate of 15% per annum from 4th August 2015 to date of
Judgement.
Global Engineering and Technical company do return to NPA forthwith Within fourteen days
from the date of judgement in this suit the sum of $12,500,000 Dollars
being the amount unjustly claimed and received from NPA. Interest on the
said sum at the rate of 15% per annum from 4th August 2015 to date of
Judgement.
Damages in the sum of 1million dollars against Cares Nigeria limited for the lost suffered by NPA. The suit has been adjourned till 23rd of October, 2018 for defendants to file their amended statement of defence for hearing to commence.
